Midwest Education Law

According to a report in The Kansas City Star, Missouri Education Commissioner Chris Nicastro is recommending to the State Board of Education that the Kansas City, Missouri School District lose its accreditation.  A Missouri statute provides that an unaccredited school district must pay tuition and transportation costs for students within its boundaries who opt to transfer to an accredited district within the same or an adjoining county.  Last year, the Missouri Supreme Court interpreted this law to mean that the "receiving" school district does not have discretion to reject the transfer student.  (The case involved students from the St. Louis School District, which previously lost its accreditation.) 

This is not, however, the end of the story.  The case was sent back to a lower court for trial, where the affected school districts have mounted new challenges to the law.  They have argued that the law violates the Hancock Amendment's prohibition against unfunded mandates, is impossible to comply with because of physical space limitations, and that it may result in violations of IDEA.  That trial is now scheduled for January 23, 2012.

If the State Board in fact strips KCMSD of its accreditation, and you work in a school district that receives a transfer request from a KCMSD student, consult your legal counsel as soon as possible.  We can also work with you to develop procedures for responding to such requests, or to position your district to defend against litigation stemming from transfer requests.

An appellate court has ruled that a Kansas school district did not confer greater employment rights simply by defining the term “just cause” in the district’s employee handbook.  The Tenth Circuit Court of Appeals, which hears appeals from Kansas federal court, recently denied a Unified School District employee’s due process claim because the employee lacked the required property interest in his employment to pursue such a claim.

Generally, demoted or fired employees may pursue due process claims when they have a property right in their employment – usually derived from a contractual requirement that the employee may only be terminated “for cause.”  In the recent case, Brantley v. Unified School District, a driver for the school district’s food services department argued that because the employee handbook defined “just cause” under the heading “Suspension, Non-Renewal, Termination” he had a right to due process before being demoted.  But the Tenth Circuit disagreed, reasoning that the “just cause” language referred to three categories of discipline that did not apply Brantley’s situation.

While the school district prevailed, the case serves as a reminder that employee handbooks must be carefully drafted to avoid claims like the one at issue in Brantley. 

Senior school district administrators often have clauses in their employment contracts under which the school district pays both their individual health insurance premiums, and the additional premium for spouse and family coverage.  This is generally not paid for lower-ranking employees of the district.

The 2010 health reform law includes a nondiscrimination rule that raised questions about the use of such clauses.  Under the rule, insured group health plans (other than certain "grandfathered" plans) are prohibited from discrimination in favor of highly compensated participants in terms of either (a) eligibility to participate, or (b) the benefits provided under the plan.  The employer/sponsor of plan violating this law is subject to an excise tax of $100 per day per non-highly compensated employee who is discriminated against.  For larger school districts with hundreds of employees...well, you can do the math, and it isn't pretty. 

We had received several inquiries about whether the new law would trigger penalties against school districts who are paying family premiums for senior administrators only.  Apparently, the IRS received similar questions, because it issued last week a notice that insured plans will not be subject to the penalty until after the IRS issues further guidance on application of the nondiscrimination rule.  We can't say for certain when that guidance will be issued, but the deadline for submitting comments to the IRS is March 11, 2011, so further word probably won't be forthcoming until the summer, at least.

In the meantime, new contracts and extensions of existing contracts should account for the possibility that this benefit could become impermissible. 

The Platte County Circuit Court recently entered an Order rejecting a challenge to a cooperative agreement between a school district and the local sewer district. Cooperative agreements, which are expressly allowed by Missouri law, enable political subdivisions to work together and save resources on a wide variety of projects. The agreement at issue was designed to provide sewer services at an elementary school. It was challenged by local residents on a variety of legal grounds and Spencer Fane represented the school district. After hearing factual evidence and legal argument, the Circuit Court entered an Order affirming the validity of the agreement and rejecting the challengers' claims.

If carefully drafted, a cooperative agreement can be a powerful tool for finding cost-effective solutions to potentially expensive projects. This recent opinion is a reminder that cooperation between school districts and other state agencies is very important, especially in difficult economic times.

Congratulations to Dr. Dennis Fisher, Superintendent of the Park Hill School District, for being named Missouri's 2010 Superintendent of the Year.  Dr. Fisher was presented with the honor on October 23 by his colleagues in the Missouri Association of School Administrators.  This is a high honor for the entire leadership team of the Park Hill School District. 

The law firm Spencer Fane Britt & Browne LLP is pleased to announce the addition of new associate Stephanie Lovett-Bowman. She will practice with Spencer Fane's Education Law group in the Kansas City office. “The addition of Ms. Lovett-Bowman and her immediate contributions will further enhance client service and expand our Education Practice,” said Joe Hatley, Partner and Group Leader of Spencer Fane’s Education Law Practice.

Stephanie Lovett-Bowman received her J.D. from University of Kansas School of Law, where she was elected to The Order of the Coif and served as Editor-in-Chief of Kansas Journal of Law & Public Policy. She also received the Faculty Award for Outstanding Scholastic Achievement and took second place at the Moot Court National Criminal Procedure Competition in San Diego, California. Stephanie has degrees in journalism and political science from the University of  Kansas, where she graduated with highest distinction. Prior to joining Spencer Fane, she served as an intern under the Honorable David Waxse, United States District Court. She is admitted to the Bar in Missouri.

Spencer Fane Britt & Browne's Education and School Law group boasts some of the most influential education attorneys in the Midwest, and has extensive experience representing public school districts, private or specialized schools and other education-related organizations and associations. Our attorneys help schools successfully resolve the wide variety of issues that confront them, including teacher tenure and termination, student discipline, students' rights, special education, athletics eligibility, contract negotiation, policy development, administrative compliance, complaint investigations and personnel matters. We also provide training and in-service assistance to paraprofessionals, teachers and administrators.

This year, like last year, the Missouri General Assembly bundled many legislative changes impacting education into a single bill.  That bill (HB 1543) was adopted by the legislature and approved by the governor.  Most of the provisions become effective on August 28, 2010.  The statute addresses a variety of important subjects including bullying, corporal punishment, dress codes, immunity from liability, administration of medication and conditions of suspension.  Click here for a summary of these and other provisions of the statute.  Familiarity with these provisions is important as many of them represent material departures from prior requirements. 

The Department of Education recently published new guidance regarding disclosure of education records during emergencies and disasters.  After providing a basic refresher on FERPA requirements, the Department answers a series of hypothetical questions in the context of natural or man-made disasters.  Three items merit attention here. 

First, the Department makes clear that the health or safety exception in FERPA "is temporally limited to the period of the emergency" and does not permit so-called blanket releases of information.  Second, disclosure decisions must be made "on a case-by-base basis, taking into account the totality of the circumstances pertaining to a threat to the health and safety of the student or others."  Third, the exception does not allow disclosure in connection with the threat of a possible or eventual emergency.  In other words, disclosure of education records in connection with emergency preparation activities is not permitted. 
 
The flexible standards acknowledge the discretion which must be afforded school administrators in an emergency.  If an administrator can articulate a rational basis for disclosing personally identifiable information in an emergency, the Department of Education will defer to the administrator. 

The National Alliance of Charter Schools is holding its 2010 National Charter Schools Conference in Chicago this week, which runs from June 28-July 1.  Keynote speakers include Reed Hastings, Founder and CEO of Netflix, Arne Duncan, U.S. Secretary of Education, and Bill Gates.  You can find the full text of Mr. Gates' Keynote Speech here.

In 1998, a British doctor named Andrew Wakefield published the first study suggesting a connection between autism and the MMR vaccine.  On May 24, 2010, England’s top medical group ruled that Dr. Wakefield conducted his research unethically and then banned him from practicing medicine anywhere in England.  Even before today, 10 of the 13 authors who worked with Dr. Wakefield on the 1998 study renounced its conclusions.  Additionally, in February 2010, Dr. Wakefield was found guilty of acting unethically during his research study on autism.

All of the recent events regarding Dr. Wakefield have focused on the way his research was conducted rather than the science behind his conclusions; nonetheless, many doctors who dispute the science and assert that the MMR vaccine is safe cite today’s ruling as support for the idea that Dr. Wakefield’s study should not be relied upon.

The PSRS/PEERS Board of Trustees changes to regulations which define termination, clarify the limits of working after retirement and require employers to maintain a log of hours and earnings for future retirees. The changes are effective for anyone retiring on or after July 1, 2010. It will be important to review these regulatory changes which mark a departure from past practices.

The New York Times today that OCR plans to open up compliance reviews of 32 school districts. While it is not surprising that the Obama administration intends to be more vigorous in the enforcement of civil rights laws, the approach that OCR plans to take is a bit unprecedented. Instead of just confirming that a school district has policies requiring, for example, equal opportunities for women in athletics, OCR plans to dig deeper to see if the policies actually have resulted in the exercise of those opportunities.